9911796707
TMI Blog2013 (2) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... fication dated 01.04.1997. Tribunal was in error in assuming that this was a case of withdrawal of an option. It was not a case of withdrawal, but it was a case of an option which had not been validly exercised, in the first instance. It is no doubt true that an option once exercised under the said notification, could not be withdrawn for the entire period of the financial year during which that option is exercised but, as mentioned above, this is not a case of withdrawal of an option. On the contrary, it is a case of the option itself being ineffective from its inception. This being the position, if the appellant has taken any advantage of the notification, that advantage would have to be reversed & appellant’s case would, therefore, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was in accordance with the notification No.16/97/CE dated 01.04.1997. 3. One of the conditions for exercising that option to not avail the exemption and to pay the appropriate duty of excise leviable was that the option should be exercised before effecting the first clearance in a financial year. And, if so exercised, it was required to be subject to clause (ii) of paragraph 2 of the notification. We need not go into the examination of clause (ii) of paragraph 2 inasmuch as according to the appellant the exercise of option itself was defective as it had been exercised on 01.08.1997, after effecting the first clearance in the financial year 1997-98. Consequently, the option exercised was contrary to notification No.16/97/CE dated 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. 2. The learned counsel for the respondent had taken time to take instructions as to whether the clearances, for which no duty has been paid for the months mentioned in the above order, could be subjected to central excise duty after giving the benefit of Cenvat credit to the appellant in accordance with law. The learned counsel for the appellant had stated categorically that the appellant was willing to pay whatever amount was calculated as per the record of clearances. 3. The learned counsel for the respondent informs us that he has taken instructions and that the department is not willing to accede to this proposal. 4. In these circumstances, we feel that the substantial questions of law which had arisen in this appeal and are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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